Attorneys for the Olmstead defendants asked the trial judge to review the evidence to make sure it was sufficient to justify an indictment. The attorneys also asked that the indictment be dismissed on grounds of improper influence, alleging that William Whitney coerced the grand jury by threatening the foreman with prosecution. On the constitutional issues, the Olmstead defense attorneys wanted to exclude from trial the evidence obtained by wiretapping on the grounds that the wiretapping constituted an unreasonable search and seizure in violation of the Fourth Amendment. They pointed out that the wiretapping was contrary to Washington state law and that the court ought not sanction breaking the law as a means of obtaining evidence. Drawing on the long tradition of associating search and seizure issues with property rights, the defense attorneys characterized the agents who listened in as “trespassers” on private rights and portrayed conversations on the telephone as the equivalent of letters sent in the mail, which the Supreme Court had recognized as protected by the Fourth Amendment. Defense attorneys also argued that the use as evidence of the overheard conversations compelled the defendants to be witnesses against themselves, in violation of the Fifth Amendment. Citing the two amendments and invoking property rights, in effect, postulated a right of privacy from government intrusion.

The Government Attorneys

At the trial level and in the Ninth Circuit court of appeals, the government prosecutors argued that there was sufficient evidence to bring an indictment and that there was no undue influence on the grand jury, referring to the affidavits of the foreman and others that contradicted the defendants’ claims. The government attorneys asserted that only evidence gathered in violation of the Fourth Amendment could be excluded from federal courts, and that even illegally obtained evidence, such as that obtained in violation of the Washington state law prohibiting wiretaps, could be used according to the common law. The government turned the property argument against the defendants, pointing out that the wiretap was made not on the defendants’ premises and arguing there was no invasion of their property. The government also rebutted the equating of phone conversations with sealed letters, pointing out that letters were papers, which were mentioned in the text of the Fourth Amendment. In short, the government argued that there was no violation of Fourth Amendment provisions against unreasonable searches and that the evidence from the wiretaps should be admitted. The government separated the questions of the Fourth and Fifth Amendments, arguing that if the Fourth did not exclude the evidence then the Fifth did not apply. The government claimed the Fourth Amendment was intended to prohibit the use of general warrants that did not specify the place that was to be searched or the items to be seized, and thus did not combine with the Fifth Amendment to create a right of privacy.